How Dementia Affects Estate Planning

For many people–myself included–one of the most frightening things about aging is the possibility of developing dementia. According to the Alzheimer’s Association, roughly 5.3 million Americans had Alzheimer’s disease in 2015–a number that is expected to increase to some 7.1 million in the next 10 years. Alzheimer’s is the most common cause of dementia, a group of symptoms that includes loss of memory and cognitive abilities that affects a person’s ability to live his or her daily life.

For someone struggling with dementia, it’s important to get legal matters in order quickly. In order to make a will or a power of attorney, you have to have what we lawyers call “capacity,” the legal and mental ability to take a legal action. In terms of making a will or a trust, Missouri law says that you have to have a “sound mind.” Okay, what does that mean? It means four important things:

  1. The person understands the ordinary affairs of life,
  2. The person understands the nature and extent of his or her property,
  3. The person knows who would be most likely to take that property if he or she died, and
  4. The person understands that, by executing the document, he or she is giving property to persons as specified in the document.

Dementia causes time pressure

Generally speaking, the memory loss and cognitive impairment of dementia generally gets worse over time, not better. In the early stages of dementia, it’s possible that a person could still have a sound mind under Missouri law. As symptoms worsen, though, it’s less and less likely.

Therefore, if a person with dementia has been procrastinating on preparing an estate plan, the time to stop procrastinating is right now. More delays may lead to symptoms getting worse, and eventually not being able to take any sort of action. We’ve talked about delaying estate planning before–it’s dangerous in other situations too–but in this case, delays may make planning impossible.

Dementia can encourage will contests

If someone doesn’t have a “sound mind” but makes a will anyway, that will is void–it’s like it never existed. If an estate heir has a reduced share (or is left out completely) of a will made by a person whose mental state is questionable, it might encourage that person to challenge the will.

For a client that might not have capacity, a lawyer is probably going to make an effort to determine whether or not the client is capable of making a will. Clients might get questions about the time and date, why they’re meeting a lawyer, about their family and property, and about their daily business so that the lawyer can determine whether the client understands what is going on.

Long-term care planning might be necessary

In the early stages of Alzheimer’s or other dementias, it’s possible that the person may be able to live independently. As time passes, though, it’s more and more likely that the person will need help. If that help involves a nursing home, creating a plan can help with qualifying for Medicaid or finding other ways to pay for care. The sooner this happens, the better.

Prepare for medical and financial decision making

Eventually, a person suffering from dementia is almost certain to need someone to make decisions for them. If it’s possible, I think it’s best to let that person make the decision and create powers of attorney for medical and financial decisions. These documents can clarify who has the authority to make these decisions without having to obtain a conservatorship or guardianship.

Confronting the legal issues related to dementia can be uncomfortable. However, any planning that can be completed before the symptoms make planning impossible will be beneficial. Procrastination can make planning impossible–if you think dementia might be an issue, it’s best to act immediately.

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